The German Federal Constitutional Court last week published its opinion in the “new” teacher headscarf case (available here in German, English language press coverage here).

The Court held that a general prohibition against teachers’ wearing headscarves in public schools is unconstitutional under Article 4 (1) and (2) of the German Basic Law.[1] In a 2003 decision (English translation), the Court had dodged the question of the teacher headscarf’s ultimate constitutionality. In that earlier decision, it held that state legislatures had to create a legal basis for such bans. This new decision now squarely addresses the constitutional question of religious freedom. For convenience, I’ll refer to the decisions as “Headscarf I” and “Headscarf II” respectively.

After Headscarf I, the state legislature of the State of North Rhine-Westphalia enacted a provision in its statute governing public schools that prohibited political, religious, or other ideological expressions by public school teachers if these expressions have the potential to endanger or disturb state neutrality or the peace at school. In particular, these outward expressions are impermissible if they could suggest to students and parents that the teacher objects to human dignity, equality, fundamental rights or the democratic order. Finally, the provision also declared the expression of Christian and Western teachings, cultural values, and traditions to be permissible.

Two teachers who were employed in the North Rhine-Westphalian public school system challenged the provision in a constitutional complaint after adverse rulings in the labor courts. The first teacher had been asked by school administrators to stop wearing her headscarf at school. She complied and instead started wearing a pink Basque-style beret covering her hair and ears, and a matching turtleneck sweater. School administrators then issued a disciplinary warning formally threatening to terminate her employment if she did not stop wearing a religiously motivated head covering. The second teacher was fired for refusing to stop wearing her headscarf at school.

The Federal Constitutional Court, in a 6-2 decision via its First Senate, held that the state law provisions have to be narrowly construed in light of Article 4 to ensure their constitutionality. The state labor courts and the Federal Labor Court, which initially ruled on the teachers’ challenges, failed to do so. In light of Article 4, the Federal Constitutional Court did not deem the abstract possibility for endangering state neutrality or the peace at school a sufficient basis to issue a blanket ban on headscarves. Only a concrete danger to state neutrality or the peace at school would justify prohibiting the exercise of a binding religious command. The Court explained that the state legislature did have a legitimate goal in securing peace at school and state neutrality in matters of religion. However, the state-wide prohibition of religious expression by outward appearance—wearing a headscarf—was disproportionate. There has to be some concrete danger to the values the state is trying to protect. While such a concrete danger might materialize, it was absent in this case. Thus, the Court reversed and remanded for further proceedings in light of this construction of the state law provision.

On the question of privileging Christian symbols and traditions, the Court concluded that such favoring treatment is unconstitutional. If the display of religious messages by teachers is to be prohibited, such a prohibition must apply equally to all religions. The Court accordingly invalidated the provision.

The two dissenting judges argued that in the Court’s analysis, the individual teacher’s religious freedom receives too much weight and countervailing constitutional interests too little weight. Moreover, the narrowing construction preempts the legislature’s decision on how strictly neutrality should be enforced in the public schools. In this respect, they argued, Headscarf II departs from Headscarf I. The state legislature’s judgment should receive deference as long as the religious message communicated is sufficiently strong. Under the dissenters’ view, the first teacher’s beret and turtleneck had no obvious religious connotation and were not readily identifiable as communicating a religious message. Thus, they concurred with the majority’s conclusion as far as the first teacher was concerned. But they concluded that the second teacher’s headscarf communicated a strong religious message, and therefore, that the state should be able to prohibit it.

Do we gain more clarity on the Federal Constitutional Court’s understanding of “neutrality”? Headscarf I contained the Court’s most extensive discussion of neutrality in religion-state relations to date; I quoted the direct language from Headscarf I on neutrality in this earlier blog post. Headscarf II provides a somewhat more nuanced account (and for the rest of this paragraph, I’m largely providing a direct translation). Starting from the premise that the Basic Law creates the state as a home for all citizens, as the Federal Constitutional Court has long recognized, the Court cites the state’s obligation to ideological and religious neutrality. This neutrality includes prohibitions against a state church and the privileging of certain creeds as well as the exclusion of others. The state must ensure the equal treatment of all religious and ideological communities. It may not identify with a particular religious group. It is characterized by openness toward the diversity of ideological and religious convictions that finds its basis in the notion of the human being as shaped by human dignity, free self-determination, and responsibility for oneself. State neutrality is not to be understood as distancing in the sense of a strict separation of church and state, but rather as an open and encompassing posture that equally promotes religious freedom for all creeds. The state is obliged to create space for the active expression of belief and the autonomous realization of one’s personality in matters of ideology and religion. But the state may not directly exert influence on behalf of a specific political or ideological belief. Nor may it expressly or impliedly align itself with a specific belief or ideology and thus endanger the religious peace within society by its own activity. Finally, neutrality in matters of ideology and religion prohibits the state from judging the beliefs and doctrine of a religious community as such.

The dissenters suggest that Headscarf I gave state legislatures considerable leeway in determining the scope of neutrality in the public schools. Indeed, they suggest that Headscarf I provides a basis to interpret state neutrality in the public school context as stricter and more distancing—that is, increasing the distance between religion and the state—than before.

The elements the Court cites in explicating the concept of state neutrality largely align with prior statements, as indicated by frequent citations to Headscarf I as well as other cases from the religion-state relations canon (most notably, the Crucifix decision). However, the Court’s emphasis on non-identification seems noteworthy, particularly in light of its discussion of the attribution of religious messages to the state as opposed to individuals.

So let’s turn to the Federal Constitutional Court’s focus on the question of attribution. As I’ve discussed in more detail here, that question appeared to gain more importance in the European context as well. And this decision confirms that trend on the national level. The Court pointed out that students are required to be in the classroom, and the state thus creates an environment in which the student cannot escape religious expressions. But with respect to the effect on students, it must be asked whether the religious message is articulated based on a decision by school administrators or due to the personal choice of an individual teacher. Individual teachers can base their decisions on the right to religious freedom in Article 4. The state does not assume responsibility for the message if it permits a teacher to wear her headscarf as an expression of her own religious belief. Wearing a headscarf is obviously the exercise of an individual right. The Court also distinguishes the individual teacher’s headscarf from the classroom cross or crucifix—unlike the cross on the wall, the teacher’s headscarf does not signal identification of the state with a particular religion.

The dissenters reject this division of attribution. They suggest that teachers are the state’s representatives in the classroom. Distinguishing between symbols attributable to the state and clothing attributable to the teacher underestimates the effect of the teacher’s religious garb on the students.

What makes this particularly interesting is that the Court is asking about the line between state expressions of religious messages and individual expressions. But it does so in the absence of a clear division between a free exercise-type provision and a nonestablishment-type provision. Put another way, we’re perfectly familiar with this division from the U.S. perspective, and we ask the same question all the time, but that doesn’t tend to be the constitutional setup in most European national systems or, for that matter, the European Convention on Human Rights (ECHR) to which I’ll turn now.

The Court rightly rejected the teachers’ challenges under Articles 9 and 14 of the ECHR. In Germany, the ECHR has the status of federal law; thus, petitioners in a constitutional complaint can directly challenge state law under the ECHR (whereas such a direct challenge is impermissible for federal law). The Court emphasized the “margin of appreciation” the European Court of Human Rights (ECtHR) has awarded the national states in this area. Nonetheless, a fascinating open question now is this: How will Headscarf II interact with recent decisions of the ECtHR? The ECtHR seemed to be embarking on a trend toward what I’ve called “Transnational Nonestablishment.” How that trend might be influenced by an emphasis on the attribution question perhaps developing in national courts will be interesting to see. To be sure, the margin of appreciation doctrine still is doing considerable work in the area of individual religious freedom, despite the ECtHR’s incipient move to address nonestablishment-type concerns.

(1) Freedom of faith and conscience, and freedom to profess a religious or philosophical creed, shall be inviolable.
(2) The undisturbed practice of religion shall be guaranteed.
(3) No person shall be compelled against his conscience to render military service involving the use of arms. Details shall be regulated by a federal law.

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